Child, Law, And Consensual Sex

Relevance: GS2- Government policies and interventions for development in various sectors and issues arising out of their design and implementation, Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections. Issues related to children

(Source: The Hindu, 07/26/2023)

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Why in the news?

• The author, R K Vij, a retired IPS officer, has discussed the POCSO Act, and the interpretation of consent in in cases involving children.
• The High Courts of Madras, Madhya Pradesh, Delhi, and Bombay have recently quashed FIRs and pending proceedings under the POCSO Act on the grounds that the act was consensual.
• The High Court of Madhya Pradesh recommended that the Indian government consider reducing the age of consent from 18 to 16 years.

What is the definition of a Child?

• According to the Protection of Children from Sexual Offenses Act (POCSO), 2012, a child is defined as any person below the age of 18 years.
• The UN Convention on the Rights of the Child, 1989, defines people below the age of 18 as children unless they have reached the age of majority as per the national law.

POCSO Act

• The POCSO Act was enacted to develop a strong framework for the protection of children from sexual assault, sexual harassment, and pornography while also protecting the rights of the child.
• It was amended in 2019 to ensure justice, deter perpetrators, and ensure a secure and dignified childhood.

Features

• It is gender-neutral in nature, unlike previous acts.
• It defines multiple forms and acts of sexual abuse and is not limited to just pornography, harassment, or penetrative/non-penetrative offenses.
  • It states that these acts are “aggravated” if the child is mentally ill and/or the perpetrator holds a position of authority and trust like a family member, doctor, teacher, etc.
• It establishes Special Courts to exclusively deal with the offenses mentioned under the Act.
• It empowers the policeman to act as the protector of the children throughout the judicial process to prevent their victimization.
• The investigation must be child-friendly and justice must be prompt, i.e. within a year of being reported.
• Reporting sexual offenses has been made mandatory.
  • Misuse of its provisions for defamation of the person is punishable.
• Its implementation is monitored by the State Commissions for the Protection of Child Rights (SCPCRs) and the National Commission for the Protection of Child Rights (NCPCR).
• In case of any inconsistencies, Section 42A of the POCSO Act allows it to override any other provisions.

Challenges

• Multi-dimensional challenge: Child sexual abuse is a multi-layered issue that can detrimentally impact the child’s mental health, physical well-being, and behavior.
• Digital threat: Advancements in technology and the internet have contributed to the rise in child abuse in forms such as cyberbullying, harassment, and pornography.
• Conviction Rate and Pendancy: Only about 32% of the total reported cases get to the stage of conviction with nearly 90% of cases pending in the judiciary.
• Consensual cases under POCSO: The provisions of POCSO and Section 375 IPC aims to safeguard children from penetrative sexual assault regardless of their consent, which could be provided voluntarily.
  • Section 90 of the IPC states that consent is not consent if it is given by people below the age of 18.
  • Under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, intent does not need to be proven separately when prohibited acts are committed while aware of the victim’s caste.
  • As children are treated as a vulnerable category, consent should similarly not be considered by the courts when the accused knows that the victim is a child.

How are Consensual cases handled by the judiciary?

• Courts have been reluctant to convict the accused in consensual sex cases as the prescribed punishment of 10 years in case of penetrative sexual assault and 20 years in case of aggravated sexual assault.
• In July 2023 alone, three different High Courts quashed proceedings in consensual cases based on the grounds that the victim had consented.

Impact

• If all consensual cases are quashed by the judiciary, it could lead to a dilution of the provisions of the POCSO Act.
• It will not reduce the burden of duty on the police as they will have to register FIRs in cases of missing children, or when cognizable offences are registered by family members.

Way Forward

• The Bureau of Police Research and Development should conduct an age-wise analysis of all cases across the country.
  • This study would assist the Union Government in taking a decision to reduce the age of consent.
• The age of consent can be reduced while leaving the judiciary with some room for interpretation of whether the child is capable of understanding the consequences of giving their consent.
• Although the reduction of the age of consent is within the jurisdiction of the Parliament, the Supreme Court must intervene to resolve the gap between the law and the verdicts of the High Courts.

FAQs

MCQs

Question: Consider the following statements:

1. The POCSO Act, 2012 is gender neutral.
2. The Court acts as the protector of the child under the Act.

Which of the above statements is/are correct?

(a) Only 1

(b) Only 2

(c) 1 and 2

(d) None